1. The first point raised in this appeal is that the case of Hridoy Nath Das Choudhry v. Krishna Prosad Sircar 34 C. 298 : 6 C.L.J. 153 : 11 C.W.N. 497, has not been correctly decided and that the lower appellate Court was wrong in following the same.
2. I think I am bound by that judgment. The three jamas in this case having been sold at one sale in execution of one decree recoverable for the same, the special incidents of a sale under the Bengal Tenancy Act have, under the above ruling, no bearing upon this case.
3. The next point that is pressed upon me is that, supposing that the above ruling has been correctly decided, the tenures were sold by the Court expressly with the right to avoid all incumbrances and that the sale certificate of the purchaser gave him that right; that, under the circumstances, the plaintiff must be considered to be a bona fide purchaser without notice of any defect in the procedure leading to the sale, and that, therefore, whether the purchase was correct or not, he is entitled to the rights mentioned in his sale certificate. Reliance is placed in this connection on the case of Rewa Mahton v. Ram Kishen Singh 14 C. 18 at p. 25 : 13 I.A. 106.
4. I think that the appellant is not entitled to have the rights mentioned in his sale certificate, simply because, on the basis of the ruling in Hridoy Nath Das Chowdhry v. Krishna Prosad Sircar 34 C. 298 : 6 C.L.J. 153 : 11 C.W.N. 497., the sale, if it was to be invested with the incidents of a sale under the Bengal Tenancy Act, ought to have been of single holdings and not three holdings jumbled together, and the mere fact of the plaintiff being a bona fide purchaser would not invest the Court with authority to give him the title which could accrue only under a special procedure laid down in the Bengal Tenancy Act.
5. The third point that is argued before me is that the lease pleaded by the defendant being of more than nine years, it is void and that, therefore, on that ground alone, the plaintiff, even if he is , the purchaser of the right, title and interest of the original ryot, is entitled to treat the defendants as trespassers and evict them.
6. There is no written lease pleaded in this case by the principal defendants. Although they say they have got a permanent lease existing from the time of the permanent settlement, no written lease is produced or proved. They must, therefore, be, if they are under tenants, under-tenants from year to year and in that case the procedure under Section 49 of the Bengal Tenancy Act would have to be gone through, in order to evict the defendants. It is contended that it is not necessary to go through the procedure under Section 49, because Section 49 directs that the eviction cannot be except at the end of the next agricultural year and, if that be so, no substantial injury would accrue to the defendants if it was made in this case without a notice specifically issued under Section 49 of the Bengal Tenancy Act.
7. I do not think I should be justified in making a decree in that the Bengal Tenancy Act makes a special procedure for the ejectment of under-tenants; and for whatever it is worth, under-tenants are entitled to such rights, slender though, they may be, as have been conferred upon them.
8. The next ground is that the plaintiff is entitled to a decree in respect of plots Nos. 2, 5, 6, 12,13 and 16 with regard to which the defendants do not claim any title.
9. The learned Vakil for the respondent says that as he has made no claim to these plots in his written statement, ho cannot oppose the plaintiff in his prayer for a decree in respect of those lands, but that he ought not to be made liable for costs in respect of those plots.
10. As the defendants did not resist the claim of the plaintiff to take possession of these plots of land, there would be no cause of action against them. As there is no opposition and as it may prevent further litigation, I allow the prayer of the appellant to give him a decree for possession of these plots but there will be no order as to costs.
11. Subject to this variation, the appeal is dismissed. The respondents are entitled to their costs.
12. The judgment governs the other two appeals (Nos. 1449 and 1711 of 1908) which are also dismissed with costs.